ISLAMABAD: The Supreme Court constituted a five-judge larger bench on Friday to hear an appeal challenging the exercise of suo motu powers by the Islamabad High Court granting bail to under-trial prisoners (UTPs) through an order on March 20.

The hearing will begin on Monday (March 30).

The bench will consist of Chief Justice Gulzar Ahmed, Justice Umar Ata Bandial, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah and Justice Qazi Muhammad Amin Ahmed.

Syed Nayab Hassan Gardezi moved the six-page appeal before the Supreme Court on behalf of Raja Muhammad Nadeem questioning whether the IHC had any jurisdiction to exercise suo motu powers.

The appeal pleaded that the March 20 IHC order militated against the concept of trichotomy of powers since it was within the exclusive domain of the executive to frame any policy to deal with UTPs in a manner it deemed appropriate keeping in view the coronavirus emergency.

Appellant questions whether Islamabad High Court has jurisdiction to exercise suo motu powers

The petition has also raised a plea asking whether the inherent powers vested in the high court under Section 561-A of the Criminal Procedure Code (CrPC) were unfettered or whether they can only be exercised in situations where no express statutory provisions were available.

Glaring omissions and mistakes have crept into the March 20 IHC order violating the law, the Constitution and public policy, the appeal contended.

On March 20, the Islamabad High Court had sought a report from the superintendent of Rawalpindi Central Prison about under-trial prisoners. A report furnished before the high court highlighted that the sanctioned occupancy of the jail was 2,174, but at present it housed 5,001 inmates, of which 1,362 were UTPs.

A majority of the UTPs, the report conceded, fell within the ambit of the non-prohibitory clause. In addition, several convicted prisoners were above the age of 55 years and some of them were suffering from illnesses that cannot be treated during imprisonment.

The IHC, exercising suo motu jurisdiction, converted the report into a petition under Section 561-A CrPC because the federal government had declared a national calamity in the wake of the coronavirus threat.

The IHC stated in its order that since overcrowding in Adiala prison was alarming, bail was being granted to the UTPs whose offences fell within the ambit of non-prohibitory clause.

The high court had also ordered the deputy commissioner of Islamabad to facilitate the release of UTPs, but only after conducting proper screening. The deputy commissioner was also required to identify prisoners who were eligible for release under the Prison Rules, the Probation of Offenders Ordinance 1960 and Section 410(1) CrPC.

But the appeal before the Supreme Court referred to a settled principle of law under which a high court cannot exercise its inherent powers in a situation where no express statutory provision was available.

The remedy under Section 561-A CrPC is not an alternative or substitute and invoked only to secure the ends of justice.

The appeal argued that the March 20 high court order was against the concept of the trichotomy of powers between the legislature, the executive and the judiciary. This principle underpins a rationale that policy-making is the executive’s domain as it is in a position to decide on account of its mandate, experience, wisdom and sagacity, acquired through diverse skills, the petition contended.

On the other hand, the judiciary is entrusted with the task of interpreting the law and to play the role of an arbiter in cases of a dispute between individuals and the state.

On Friday morning a two-judge bench of the Supreme Court, consisting of Justice Mushir Alam and Justice Qazi Muhammad Amin Ahmed, wondered whether Italy, France and the USA _ the three countries worst-affected from the virus pandemic _ had released inmates.

The observation came during the hearing of a bail plea moved by Mir Masood Sattar of the Utility Stores Corporation (USC), who has been in jail for the last one year after his conviction on corruption charges.

An individual who has committed an offence should face the law, observed Justice Amin while rejecting the bail plea.

The observation came after the court was told about the March 20 IHC order in which the authorities were directed to release UTPs in view of the outbreak.

The court observed that courts never grant bail based on any policy but only in accordance with the law.

Published in Dawn, March 28th, 2020